Citation Nr: 0830309
Decision Date: 09/05/08 Archive Date: 09/10/08
DOCKET NO. 07-02 360 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida
THE ISSUE
Entitlement to a total disability rating based on individual
unemployability (TDIU).
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Matthew W. Blackwelder, Associate Counsel
INTRODUCTION
The veteran retired from the active military in August 1977,
with more than 25 years of service.
This appeal comes to the Board of Veterans' Appeals (Board)
from a May 2006 rating action.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2007). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. The evidence shows that the veteran is unemployable based
on his nonservice connected cognitive disorder.
2. The evidence fails to show that the veteran's service
connected disabilities render him unemployable.
CONCLUSION OF LAW
Criteria for a TDIU have not been met. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Unemployability Determination
A TDIU may be assigned where the schedular rating is less
than total when the disabled person is, in the judgment of
the Board, unable to secure or follow a substantially gainful
occupation as a result of service-connected disabilities. If
there is only one such disability, this shall be ratable at
60 percent or more, and if there are two or more
disabilities, there shall be at least one disability ratable
at 40 percent or more, and sufficient additional disability
to bring the combined rating to 70 percent disability or
more. 38 C.F.R. § 4.16(a). It is provided further that the
existence or degree of nonservice-connected disabilities or
previous unemployability status will be disregarded where the
percentages referred to in this paragraph for the service-
connected disability or disabilities are met and in the
judgment of the rating agency such service-connected
disabilities render the veteran unemployable. Marginal
employment shall not be considered substantially gainful
employment.
The veteran asserts that he is unemployable as a result of
his service connected disabilities. The veteran is currently
service connected for bilateral hearing loss (rated at 50
percent), post-traumatic stress disorder (PTSD) (rated at 50
percent), myositis of the lumbar paravertebral muscle (rated
at 20 percent), and tinnitus (rated at 10 percent). As such,
the veteran's disabilities satisfy the criteria set forth in
38 C.F.R. § 4.16(a).
The evidence reflects that the veteran served in the military
from 1951 to 1977 which included combat service in the
Republic of Vietnam. He then worked for the government until
1984 when he retired. The veteran has also successfully
completed both undergraduate and graduate degrees.
In 2004 the veteran attempted to obtain his real estate
license, but he failed the test. In 2005, the veteran was
diagnosed with moderate cognitive decline as well as PTSD. A
VA examination of the veteran's back concluded in December
2005 that the back condition did not have any effect on the
veteran's activities of daily living; but it was thought that
the back condition would prevent the veteran from working on
a full time basis.
At a VA examination in January 2006, it was noted that the
veteran had not received any treatment for his PTSD. The
veteran was noted to have been functioning fairly well, but
the examiner indicated that due to the chronicity of the
veteran's symptoms as well as his comorbid cognitive
disorder, the veteran's prognosis remained guarded.
Nevertheless, as the veteran's representative noted in a
March 2007 written argument, during the course of this
appeal, the veteran had not been afforded a VA examination to
determine whether it was at least as likely as not that his
service-connected disabilities rendered him unable to secure
or follow a substantially gainful occupation.
Accordingly, the veteran's claim was remanded for a VA
examination, which the veteran underwent in May 2008 (the
veteran was provided with both a psychiatric examination, and
with a general medical examination).
At the psychiatric examination, the veteran reported mild to
moderate memory loss as he was often unable to find his
belongings after he had put them in certain places, and he
indicated that he occasionally got lost driving home. He
believes this failing memory caused him to fail a real estate
licensing examination several years earlier. The examiner
noted that the veteran understood that he had a problem; and
diagnosed the veteran with PTSD and with a cognitive
disorder. The examiner indicated that the veteran's overall
functioning taking both diagnoses into account was
represented by a Global Assessment of Functioning (GAF) score
of 51. The examiner indicated "NO" in response to the
questions of whether there was total social and occupational
impairment, and whether the mental disorder signs and
symptoms resulted in deficiencies in work. The examiner did
find that the mental disorder symptoms caused reduced
reliability and productivity as the veteran's memory loss was
thought to impair his occupational functioning in the area of
task comprehension and completion.
The veteran also underwent a general medical examination at
which he was found to be alert and oriented to person, place,
and time; but the examiner found it difficult to tell how
much the veteran comprehended as he had difficulty following
instructions, which the examiner hypothesized might be due to
either not wearing his hearing aids or to his cognitive
disorder. She also found that the veteran had mild to
moderate disc disease in his back, which was consistent with
what had been seen in earlier medical records; and based on
the back disability she opined that the veteran would be
limited to light duty to sedentary employment. However, the
examiner stated that the veteran's cognitive dysfunction
(dementia) would make it impossible for him to function at
his educational level.
Given the foregoing conclusions by those who most recently
examined the veteran, the greater weight of the evidence is
against a finding that he has been rendered unemployable by
reason of service connected disability. While the veteran
believes that his service connected disabilities render him
incapable of working, he is not medically qualified to prove
a matter requiring medical expertise, such as an opinion as
to diagnosis or medical causation. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494-495 (1992). Thus, the
veteran's opinion is insufficient to provide the requisite
nexus between his service connected disabilities and his
unemployability. Furthermore, the recent medical evidence
specifically showed that there was work that the veteran
could perform in spite of is back disability, but it was his
nonservice connected cognitive disorder that precluded him
from working to his educational level.
As the medical evidence shows that the veteran is not
unemployable based solely on his service connected
disabilities, the criteria for a TDIU have not been met.
Therefore, the veteran's claim is denied.
II. Duties to Notify and Assist
Under applicable criteria, VA has certain notice and
assistance obligations to claimants. See 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a).
Notice must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits and must: (1) inform the claimant
about the information and evidence not of record that is
necessary to substantiate the claim; (2) inform the claimant
about the information and evidence that VA will seek to
provide; and (3) inform the claimant about the information
and evidence the claimant is expected to provide. Pelegrini
v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).
With respect to service connection claims, a section 5103(a)
notice should also advise a claimant of the criteria for
establishing a disability rating and effective date of award.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).
In the present case, required notice was completed by a
letter dated in March 2006.
VA and private treatment records have been obtained. The
veteran was also provided with several VA examinations (the
reports of which have been associated with the claims file).
Additionally, the veteran was offered the opportunity to
testify at a hearing before the Board, but he declined.
VA has satisfied its duties to notify and assist, and
additional development efforts would serve no useful purpose.
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of
the denial of the veteran's claim, no disability rating or
effective date will be assigned, so there can be no
possibility of any prejudice to the veteran under the holding
in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because
VA's duties to notify and assist have been met, there is no
prejudice to the veteran in adjudicating this appeal.
ORDER
A TDIU is denied.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs